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Tesla Inc.'s quick access to the driving data streaming in from its cars is at the
cutting edge of auto technology. The information could prove to be at the cutting
edge of auto litigation too, attorneys, law professors and a researcher say.

Collecting acceleration, braking, speed, and other data points from Model X, Model
S, and Model 3 cars now in production can give the carmaker an early advantage in
responding to crash reports and lawsuits, as several incidents and Tesla’s own comments
about cases indicate.

But it can also add to the expense of litigation, and raises new legal wrinkles about
how the data is handled and shared with outsiders—including plaintiffs’ attorneys,
who may have a hard time interpreting the automaker’s unique and proprietary information.

“That’s something that other companies have begun to get enmeshed in,” Professor
Bryant Walker Smith of the University of South Carolina law school in Columbia, S.C., told Bloomberg
BNA. “But this is on a different scale.”

“Tesla is the keeper of so much data,” Smith, who specializes in the law of self-driving
vehicles, said.

And the carmaker isn’t shy about using the continuous, almost real-time vehicle information
it collects when it comes to protecting itself, either in the media or in the courtroom.

Tesla, for example, has used the data it has gathered to rebut reports that its state-of-the-art
Autopilot system was faulty, such as in a high-profile fatal crash in Florida in 2016,
according to Adrian Lund, president of an insurance research group.

“I’ve seen reports where there’s been an event and Tesla claims they know, say, that
Autopilot was or was not engaged,” he said. “So they’re certainly using it in that
regard.”

Lund’s group, the Insurance Institute for Highway Safety in Arlington, Va., rates
vehicle safety. He also served on a
National Research Council panel that looked into the National Highway Traffic Safety Administration’s handling
of 2009–10 reports of sudden-acceleration incidents in Toyota Motor Corp. vehicles.

Tesla has so far faced only a few suits over alleged injuries, including a class action
claiming sudden-acceleration problems exist, according to a Bloomberg BNA analysis.
And overall, the injury rate for the automaker’s Model S—the only model that the insurer-backed
group provided information about—is quite low, IIHS said.

But because of the advanced nature and novelty of its Autopilot, all-electric power,
and other features, the automaker has faced lots of scrutiny, both by government regulators
and in the media.

Tesla acknowledges the role of vehicle data in investigating incidents, but says it
makes customer privacy a priority. “In unusual cases in which claims have been made
publicly or in a legal case about our vehicles by customers, authorities or other
individuals, we have provided information based on the data to either corroborate
or disprove these claims,” Tesla told Bloomberg BNA in an email.

“The privacy of our customers is extremely important and something we take very seriously,
and in such cases, Tesla discloses only the minimum amount of information necessary
to ensure a factual understanding of our technology,” the company said.

Florida Crash

In the widely reported accident in Williston, Fla., in May 2016, a Model S plowed
into a tractor-trailer in clear conditions, killing the driver, a business owner who
had previously been a Navy SEAL.

The National Transportation Safety Board investigated and found mixed results as to
the cause of the accident.

Lund said Tesla was “very quick to say for the Florida crash that Autopilot was on,”
just as it has been quick in some other instances to deny that the driver-assist function
was engaged.

The company assisted the NTSB by providing, and helping to interpret, the data. The
NTSB is an independent federal agency that investigates accidents and issues safety
recommendations.

Tesla vehicles acquire and store information about the vehicle’s state, such as steering
angle, speed, and accelerator and brake use, according to an NTSB
report produced during the investigation.

The cars also gather information from the vehicle’s radar and camera, the report said.
The information is stored on an SD card in the car’s computer.

“Data from the SD card is episodically data-linked to Tesla servers using a virtual
private network connection established via Wi-Fi, or using the 3G cellular data capabilities
of the vehicle,” the NTSB said in the report.

The “vast majority” of the data Tesla provided, including the vehicle log, “was stored
in a proprietary binary format that required the use of in-house manufacturer software
tools for conversion” into measurements the agency could use, the report said.

NTSB staff at a Sept. 12 hearing said the truck driver, the Tesla driver, and the
Autopilot system were all part of the probable cause of the crash. The truck driver,
they said, made a left turn ahead of the Tesla, across its lane of travel. The Tesla’s
driver, Joshua Brown, relied on Autopilot so much that his hands were off the steering
wheel for most of the 41 minutes of the trip, they said.

Tesla allowed Autopilot to operate on a type of roadway it wasn’t designed for, they
said. And the system let Brown continue driving even though it detected that his hands
were off the wheel, they said. Those conclusions are reflected in a final Oct. 5
report.

NHTSA, which also investigated, declined to conduct a recall. No suit has been filed
over the accident.

‘Sitting on a Lot of Data’

Data is central to the carmaker’s defense of its products, said Smith of the University
of South Carolina.Smith described a February 2013 New York Times
review of a Tesla vehicle—and Tesla’s response, as described in a follow-up
article. A Times reporter wrote a negative review of a Tesla vehicle that included observations
about the air conditioning, Smith said. “Tesla rebutted that very aggressively,” he said. The company contested the reporter’s
observations based on its trove of data from the car, he said.

“‘You said that at Mile X you turned the temperature down by Y degrees, but in fact
you turned it up by Z degrees,’” Smith said the company responded.

“Extrapolate that,” Smith said, “and you can imagine that Tesla is sitting on a lot
of data” that it can use to defend itself, either in the media or in the courtroom.

The dynamic is already playing out in litigation.

Sudden Acceleration, Other Suits

Ji Chang Son and other class action plaintiffs sued Tesla in December 2016 in the
U.S. District Court for the Central District of California.

Son alleged he and his minor child were injured in an acceleration incident in their
garage. He and the other plaintiffs seek to represent nationwide and California classes
in the suit over alleged sudden unexpected acceleration in Tesla Model X SUVs.

NHTSA has received 13 reports of sudden-acceleration events, mostly crashes, involving
the Model X, Son said in an amended
complaint filed June 27. And at least three additional incidents, including Son’s, have occurred,
the complaint said. A Bloomberg BNA review of the federal auto safety regulator’s
website found 11 such reports.

The incidents occurred when the drivers were “either parking or getting in position
to park,” Richard D. McCune of McCune Wright Arevalo LLP in Ontario, Calif., said.
But even though they started at a slow speed, they were sometimes going fast when
they hit a wall or building, McCune, who represents the plaintiffs, told Bloomberg
BNA.

“These vehicles are rockets,” he said. “They go zero to 60 at a speed that only the
most elite sports cars can match.”

Tesla, in a statement sent to Bloomberg BNA, contested McCune’s allegations and, as
with the Florida crash and the New York Times story, it did so with the car’s own
data.

“We take the safety of our customers very seriously and conducted a thorough investigation
following Mr. Son’s claims,” it said.

“The evidence, including data from the car, conclusively shows that the crash was
the result of Mr. Son pressing the accelerator pedal all the way to 100%,” Tesla said.

Tesla didn’t say whether it obtained the data from the SD card or through over-the-air
streaming, also called telemetry or telematics.

Tesla statements to Bloomberg BNA about other suits also show how readily the company
will use the data from its vehicles to defend itself from allegations of defects and
other problems.

In one suit, a driver alleged he was rear-ended and injured in a car wash when his
vehicle shifted from Neutral to Park.

Tesla, responding to questions about the allegations, pointed to data from the vehicle.
The data indicated that the driver didn’t buckle his belt and got up from his seat,
Tesla said in an email. That’s a combination of actions that causes the car to shift
into Park to prevent rollaway accidents, the company said.

Tesla also said the driver didn’t activate a setting that would have allowed the car
to stay in Neutral.

And in response to two “Lemon Law” suits, Tesla said it confirmed that the systems
complained of—Autopilot in one case, Bluetooth in another—were functioning properly.
It didn’t say how it made the confirmation, but it may have used its communication
with the vehicle to do so.

Tesla described its approach to claims in an email. “Our philosophy is to always try
to reach a reasonable solution when there is any reason to believe that a customer
has received anything but the best treatment, and to strongly defend ourselves against
claims that are unjust or lack merit,” the company said.

Tesla discloses the type of data it collects, and how it uses and shares that data,
in its
privacy policy, which is available on its website. It may share data with third parties “to comply
with a legal obligation,” when the law requires it, and when responding to a lawful
request by government investigators, among other circumstances, the policy says.

Tesla doesn’t proactively share information from specific vehicles with media outlets
or the government, but it has done so to correct inaccuracies, when the law requires
it, or when a customer asks it to, the company said.

Expensive to Litigate

Smith, the University of South Carolina professor, said the quantity of data that
Tesla collects means litigating “would be both very lucrative and very expensive for
anybody to manage.”

And the use of that data in lawsuits raises issues of data custody, integrity and
access, he said.

So what about plaintiffs’ access to data from Teslas in product liability suits against
the carmaker? Despite Tesla’s assurances that it turns over data to customers on request,
would they be able to readily get access to their and other drivers’ data if the carmaker
refused to turn it over?

“I’m not an attorney, but It is hard for me to believe if an owner had a complaint,
that they could not get access, that a court would not demand they get access to the
data they created in driving the car,” Lund, of the IIHS, said.

Lund said that some of the Toyota vehicles the National Research Council panel investigated
when it looked at reports of sudden acceleration against that carmaker had “black
boxes,” also known as event data recorders.

“Getting data off of the them was not easy,” he said, and required technical help
from a team of the carmaker’s own engineers—as with the NTSB’s investigation into
the Tesla crash in Florida.

But despite difficulty with interpretation in particular instances, he said, such
information is generally made available in litigation in most jurisdictions—access
he imagines would be granted when it comes to Tesla’s data too.

“The only difference between this and an event data recorder is it’s not on the car,”
he said. “And it’s been interpreted in a lot of states that event data recorder data
are the property of the owner.”

Courts, of course, would be the ones to say whether that understanding applies to
streamed data, he said.

But as for safety advocates, the media, or outside researchers getting access to such
data, that’s a much less certain question especially given that Tesla said it doesn’t
“proactively” share such information.

So far, Lund said, Tesla has only made the data available from the Florida incident
to the NTSB and NHTSA. “In terms of independent people interrogating the data, as
far as I know, that’s not currently possible,” he said.

To contact the reporter on this story: Martina Barash in Washington at
MBarash@bna.com

To contact the editor responsible for this story: Steven Patrick at
spatrick@bna.com

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